Regina v Ferguson & Williams

[1999] NSWCCA 214

CITATION:	Regina v Ferguson & Williams [1999] NSWCCA 214
FILE NUMBER(S):	CCA 60787/98; 60788/98
HEARING DATE(S):	27 May 1999
JUDGMENT DATE:	27 May 1999
PARTIES :	Regina v Marcus Charles FERGUSON and Steven WILLIAMS
JUDGMENT OF:	Spigelman CJ at 34 & 36; Greg James J at 35; Smart AJ at 1-33

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/51/0066 98/51/0067
LOWER COURT JUDICIAL OFFICER:	J B Phelan DCJ

COUNSEL:	D N Howard for the Appellant P M Strickland for the Respondent Ferguson J C Nicholson SC for the Respondent Williams
SOLICITORS:	C K Smith for the Appellant T.A. Murphy for the Respondents
CATCHWORDS:	Criminal Law; sentencing appeal by Crown; full-term sentences within permissible range; minimum terms not challenged.
ACTS CITED:	-Nil-
CASES CITED:	-Nil-
DECISION:	Crown Appeals dismissed.

- 15 -

IN THE COURT OF
CRIMINAL APPEAL

060787/98
060788/98

SPIGELMAN CJ
GREG JAMES J
SMART AJ

THURSDAY 27 MAY 1999

REGINA v MARCUS CHARLES FERGUSON
REGINA v STEVEN WILLIAMS


JUDGMENT

1 SMART AJ : The Director of Public Prosecutions has appealed against the sentences that were imposed on Marcus Charles Ferguson and Steven Williams, on the ground that they were inadequate. Each had pleaded guilty to a charge of inflicting grievous bodily harm on Michael Vincent Pisani with intent to do grievous bodily harm to him. Ferguson was sentenced to a minimum term of four years six months, with an additional term of three years six months. He was born on 31 May 1974. Williams was sentenced to a minimum term of four years, with an additional term of three years. He was born on 15 September 1966. Both men are Aborigines.
2 The sentencing judge was confronted with a mass of material, not all of which was consistent. There was considerable divergence as to the degree of provocation occasioned by the victim to the prisoners and the initial actions by him and them.
3 There was criticism of the lack of action by the publican, Mr Coutman, in conducting the hotel and stopping the fights that occurred in the hotel. The judge did not feel that he was able to accept the publican's statement in its entirety, although he did use substantial parts of it. It summarised the events which had occurred. The findings made by the judge were open to him and we must proceed on the basis of those findings.
4 The judge found that the prisoners went to the Wardell Hotel about noon on 13 December 1997, bought a crate of VB and left to drink the beer on the riverbank nearby, along with others. From time to time more beer was bought. About 5.00pm the prisoners returned to the hotel, obviously affected by alcohol. Thereafter spasmodic fighting broke out between Robbie Roberts and Sean Bolt. Tables and chairs were upended. The prisoners endeavoured to stop these men fighting and as a result the whole room was in chaos.
5 Sean and Robbie continued to fight and the prisoners joined in. The prisoners, using their fists, struck each other in the head and body area. People in the bar area screamed to stop the fighting but it became more and more violent. The publican tried to put an end to the fighting but he was told by Williams to get out of the way, or he would get some. He backed away and the prisoners kept punching each other and fighting.
6 The publican saw a blue land cruiser drive up on the footpath and stop outside the hotel door on Richmond Street. This was the victim's vehicle. Other witnesses saw the victim spin the vehicle and drive it up on to the footpath, outside the saloon bar, to within a couple of feet of the door. The victim ripped his shirt off, came inside the door and slammed his hat down on one of the round tables near the door. The publican, who was near the fighting, asked the victim what he was doing there and reminded him that he was barred from the hotel. The victim replied, " Christ Trev, I thought you needed some help ." The victim had been barred from the hotel twice, because he had been brawling.
7 The judge, preferring the statements of witnesses other than the publican, found that the victim went up to Ferguson, grabbed him and severely assaulted him. The descriptions of the assault vary. Miss Kelly thought that the victim gabbed Ferguson by the throat, punched him full in the face, knocked him to the ground, got on top of him and held him down with both hands around the throat.
8 Fiona Anderson thought the victim grabbed Ferguson by the hair and hit his head against the wall three or four times. Ferguson was crouched and Williams tried to pull the victim's hand away. The victim punched Williams. Williams and Ferguson punched the victim, who retaliated with punches.
9 Lisa Anderson said that she saw the victim with both his hands around Ferguson's head and pushing Ferguson's head back and banging it into the hotel wall a number of times. The precise details are not critical. The point is that the victim initiated matters by making a severe attack on Ferguson and then Williams became involved.
10 The judge found that there was next a frenzied attack by both prisoners on the victim. This attack continued for quite a period, probably about 15 minutes. Most of the time the victim was on the floor, with each of the prisoners stomping, kicking and jumping on him.
11 The prisoners suffered no significant injuries. The judge correctly described the nature of the assault as horrific. Grave injury was inflicted on the victim. Use was made of a pool cue. A bar stool was used to hit the victim over the head. Williams was persuaded by an Aboriginal lady to stop. He left the hotel. Ferguson continued with the assault and even stomped on the victim after the police had arrived.
12 The judge accepted the medical evidence that the victim was very fortunate to live. There were serious internal injuries. He almost bled to death. He underwent a laparotomy and had to be removed, from Lismore Base Hospital to Princess Alexandra Hospital in Brisbane, for further extensive care and surgery.
13 The judge accepted the report of 26 May 1998 of Dr Darbar, a general surgeon, which relevantly reads:
"He sustained injury to the abdomen. He had a ruptured spleen, which was removed in Brisbane. He also had a left colostomy for a rupture of the large bowel and he had various laparotomies afterwards to control his intra-abdominal abscesses. In spite of all that he did not improve and he had a gaping wound in the abdomen, though his temperature was normal. He was not anaemic. The wounds on the abdomen started granulating very well and hence it was thought best to do split skin grafting on the granulating area, which was done forthwith. Before doing that surgery he had various abdominal CT scans to relieve the so called abscess on the right side of the abdomen, which was controlled without any antibiotics and the abscess disappeared completely. The patient did very well after the split skin grafting and his wound has healed very well and he has been transferred back to Gosford for further rehabilitation."

14 The judge accepted the opinion of the doctor that the victim would require his colostomy to be reversed in the future and that his prognosis was fairly good. I take that to mean that the victim will be able to manage and not that he will have a complete recovery. The judge found that while the victim did suffer some injury to the head region and that there was a suggestion of short term memory loss, there was no medical evidence substantiating brain damage. He did appear to accept the report of Dr Smith who was the Registrar for Dr Darbar which read inter alia:-
"His mental state, in effect, has waxed and waned during this whole long and sorry episode. At present he is in reasonable spirits and looking forward to getting to Wyong and hopefully into his new house in the future."

15 The judge noted that it appeared from the victim impact statement that the victim was still crippled and unable properly to fully care for himself. In terms of daily living and obtaining some enjoyment from life, the impact statement reveals a desolate picture. The victim suffers much pain and his parents have to look after him.
16 The judge thought it was likely that at least Williams could have been seriously dazed by having his head knocked against the wall about three or four times or being king hit whichever was the case.
17 The records of the prisoners were taken into account. Ferguson had minor matters of no consequence which can be disregarded. However, on 17 October 1996, he was placed on a two year good behaviour bond for assault and that bond was current at the time of the offence. On the same day, he was convicted of a PCA offence and driving whilst unlicensed. On 29 May 1997 he was sentenced to 150 hours community service for a further assault. The judge was told that nobody was hurt in either assault, the first arising during a hotel brawl and the second out of a domestic dispute.
18 Williams had several minor convictions for hinder police and similar offences. In 1993 he was fined $250 for an assault relating to a domestic dispute. The antecedents of the prisoner could not be described as poor.
The judge dealt with the subjective features of Ferguson thus:-
"I have before me two helpful reports, the first a social work assessment under the hand of Jean Alexander, a social worker with the Legal Aid Commission. I quote from her summary and opinion:-

'Mr Ferguson has clearly had a very unhappy childhood. The loss of his mother and his siblings came at a time when he was very vulnerable and could not comprehend why his family had abandoned him. His time in foster care further de-stabilised his life and he was happy to become part of his aunt's family. However, after his uncle's conversion he was further alienated from his family and eventually rebelled and suffered the humiliation of being dismissed from the church.'
I interpolate there to say, that the step-father seemed to be a man of violence and a strict disciplinarian. The report continues:-
'He has now returned to Cabbage Tree Island where he enjoys being accepted as part of the Aboriginal community and where drinking is a very important part of life.'

She then refers to Paul Wilson's book on Black Death, White Hands and refers to the strong influence that alcohol has in bonding relationships in the Aboriginal community. She goes on to observe that:-

'He now says he is anxious to address his drinking problem and intends, in the future, to move away from Cabbage Tree Island to start again. He is most contrite about the offence and is sorry for the victim, but he says he has little or no memory of the fight as he was extremely affected by alcohol, having joined his co-accused in drinking most of that day, as well as the day before. Despite Mr Ferguson's history, I assess him to have a number of strengths, which gives me some confidence, notwithstanding the environment factors, that he does have potential to break free. He is an intelligent young man with a good work history and a longstanding relationship and has sufficient insight into his situation to bring about change.'
19 I refer now to Mr Andreasen's report of 12 October 1998. He says this:-
'This is a young Aboriginal man who presents reasonably and is able to engage in some degree of thoughtful and intelligent discussion about his predicament, both as to his use of alcohol and as to acknowledgment that alcohol brings out considerable anger and violence in him. He is further able to maintain some connection between his present considerable sadness and anger and the death of his mother and his abusive and incompetent upbringing. While he has little idea of what to do about all this, he can acknowledge that he needs to address his depression and anger, as well as his drinking, in terms of some serious psychological treatment. Whether he will have the continuing motivation and social support to pursue this, after his custodial sentencing, is another matter, and it may be useful to him to have some extended period of probationary supervision to help him keep the importance of this in mind.'
I interrupt there to say that this important finding justifies the conclusion that an additional term longer than that normal under the Act, should follow."

20 As to Williams, on p 9 of the summing up the judge remarked:-
"In relation to Mr Williams, there are number of character references produced, which tend to show the high regard that he is held in by member of both the Aboriginal and white communities. He has produced a resume to the court, which indicates that he worked very hard to qualify himself in a number of ways with various trade and related certificates showing his zeal. He comes before the court with strong evidence of a committed family man, both as a father and husband. He has four children and it was interesting to hear his sister describe how he has been working double shifts in order to ensure that his family are properly provided for during the period that he will be in gaol. She gave evidence of awful hardships that the prisoner and the rest of her family endured when they were children and this has been referred to in a report by Mr Andreasen, from which I also propose to quote. He says:-
'This is man who continues to suffer from the effects of a difficult background, including early abandonment by his mother and subsequent frequent changes in the place of living, harsh physical treatment by a step-father and from living in generally socially deprived conditions as a person of Aboriginal descent in the western suburbs of Sydney where he was aware of continuing level of violence. He presents now as a dependent passive person with quiet pro-social orientation where he puts the needs of others before himself and where he has an excellent work history and is thought well of in the community. The testing, that is the psychological testing, very much confirms this man's claims that he has spent his whole life trying to get away from violence and that his whole orientation is towards trying to stop violence. This man's behaviour in this offence has been the result of two factors. One is the amount of alcohol consumption within his social setting and the fact that he has taken up infrequent binge drinking since his father died two years ago. While this man sees this pattern of one of infrequent drinking, the binges would have resulted in levels of intoxication that he has not learned to handle in the past. The other is that the prominent and depressive personality has led to a condition known as over controlled hostility. This is the tendency, of persons with extremely passive and depressed personality adjustments who do not typically react enough to provocation and who tend to avoid self assertion, to display occasional extreme outbursts of anger and aggression unrelated to the level of provocation when they are extremely intoxicated with alcohol. He said of himself, "It was like I had a blackout with the anger." He says, the other factors producing the extreme reaction would have been the behaviour of the victim and the behaviour of his co-accused. It is notable that this man had moved his family away from the Cabbage Tree Island Aboriginal community some time before this offence, in order precisely to avoid some of the difficulties with that place and that community, although it is clear that both he and his family continued to feel that they are part of the community there. This man had already made genuine and effective attempts to cut down on his drinking, but he needs to realise now that binge drinking, however infrequent, is a very considerable danger for him in terms of further aggressive outbursts. It is not likely that he would respond to this extent again, given the considerable provocative and extraordinary circumstances of the present case.'

He concludes by saying:-
'This is a man who has tried his very best to overcome the limitations of his background and he has succeeded to an extraordinary extent, given the amount of abuse and deprivation in his background and in the community where he continues to work.'"
21 The judge took into account the pleas of guilty, noting that the question of specific intention might have been contested. He did not attach much weight to that. He did not say it was a good point, but he thought that there was enough in it to take it into account. The judge did not discuss the question of intent at any length. The intent of the prisoners probably arose after the victim had assaulted Ferguson. The victim had to be repelled or restrained.
22 The judge also took into account that the prisoners
"were allowed to go on fighting in a hotel where it would seem there was absolutely no attempt to curtail the heavy drinking that had been going on during the course of that day."
23 The judge referred to the statement of Mr Peter Minns who observed Aboriginal men fighting amongst themselves in the hotel during the afternoon and thought that they were all stirred up. Mr Minns said that the publican did nothing. On p 11 of the summing up, the judge observed, referring to Mr Minns:-

"He says in his statement:-

'During the afternoon there were Aboriginal men fighting amongst themselves in the Wardell pub. I reckon the fighting was going on for hours. They seemed all stirred up and they were fighting between themselves. No one bothered to get involved and stop the fighting.'
Later in his statement he says,
"Trevor, the publican, was also nearby, but he wasn't doing nothing." Other evidence suggests that there was some 25 men drinking in the bar and not one person seemed to effectively intervene to stop this frenzied attack by the prisoners. This is not, of course, to excuse the conduct, but it might not have come to this serious level if people had taken their responsibilities, particularly the publican, in stopping people from being drunk, entering the hotel fighting and drinking."

24 I appreciate the practical wisdom of the judge's comments. Fear of getting seriously hurt may well have prompted people not to intervene. However, I do not think an offender can seek any comfort from the fact that others did not intervene to stop him behaving as he wished, albeit criminally. In fraud cases and cases of employee misfeasance or misappropriation, involving breaches of trust, it does not help the offender to say that the employer had a poor system and it was easy to take the money. The prisoners cannot rely on the failure of others to stop them drinking too much and fighting to reduce their criminality. It is not a matter correctly to be taken into account.

25 In the circumstances of the present case and in the light of the judge's acknowledgment that the failure of others to act did not excuse the conduct, I do not regard this as a major matter. The comment, perhaps, is a side comment designed to emphasise the importance of the responsibility of publicans and others not to allow fights to develop.
26 The judge correctly took into account the provocation of the victim. That was a significant matter given the serious assault by the victim on Ferguson and the victim's verbal abuse of the prisoners. It was correct to take into account that each of the prisoners was an Aborigine and the greater deprivation Aborigines suffer from being in prison. As in this case, their drinking is often the product of their deprivation, their socio economic background and their unhappy upbringing.
27 There was material on which the judge could find special circumstances. The Crown did not challenge that finding nor the proportions fixed by the judge. It might otherwise have been thought that a key matter was the correctness of the proportions. The judge considered all the matters of importance. He recognised the gravity of the offences and the sentences which he imposed involve substantial periods of imprisonment.
28 This is not a case where an over technical or pin-pricking approach should be adopted or where the court should give undue weight to minor points. The central question is whether the sentence in either case was manifestly inadequate. That depends upon a broad assessment. I do not propose to traverse specifically all the areas of evidence which the Crown alleged the judge had given insufficient weight and attention. The judge made permissible findings. Further, these matters are covered in the ground that the sentence actually imposed in the all the circumstances was manifestly inadequate.
29 The dominating features of this case are the length and savagery of the attack upon the victim while he was on the ground, its remorseless and unrelenting nature and the horrific injuries inflicted on the victim. Without prompt and skilful medical attention death would have been the victim's lot. These matters trouble me greatly. However, it is well accepted that provocation can reduce the objective criminality appreciably. The gratuitous, unwanted and aggressive intrusion of the appellant was very significant. He had to be stopped and given the volatile and alcoholic situation into which the victim so intruded, it is bad but not entirely surprising that the prisoners lost their self control. It is of the essence of provocation that the acts of others cause offenders to lose their self control and embark upon criminal conduct often of the utmost gravity. A good example is often found in the cases where murder is reduced to manslaughter. The savagery of the murder may well be very high.
30 Reference was made by counsel to the statistics provided by the Judicial Commission. This is an offence where the degree of culpability can vary greatly and only limited assistance is obtained from previous decisions and the statistics provided by the Judicial Commission. Nevertheless, these statistics show that about 19 per cent of offenders received a total sentence of eight years or more, with 12 per cent of cases attracting sentences of nine years or more.
31 Counsel for Ferguson submitted that upon true analysis of the statistics, the full term sentence imposed in this case fell within the top 20 to 25 per cent of sentences as to the full term and the top 31 per cent of sentences as to the minimum terms.
32 I regard each sentence as low given the dominating features to which I have referred, especially the minimum terms. Counsel for the prisoners contended that if even this were so, nevertheless they did just fall within the permissible range. They were substantial sentences.
33 Counsel relied on the subjective features which applied to their clients. In each case these were significant. My mind has fluctuated due to the gravity of the prisoners' actions. In the end, I am not persuaded that the full term sentences were so far removed from the bottom of the permissible range of sentences as to justify the intervention of this Court, bearing in mind the restraint which this Court exercises in Crown appeals. I regard the facts of this case as unique. Upon reflection and not without considerable doubt, I have concluded that each appeal should be dismissed.
34 SPIGELMAN CJ : I agree.
35 GREG JAMES J : I do also. I have nothing to add.
36 SPIGELMAN CJ : The order of the court is the appeal is
dismissed.
*************************